Barefoot v. State

• Decision Date: 12 March 1980
• Docket Number: No. 63715,63715
• Citation: 596 S.W.2d 875
• Parties: Thomas A. BAREFOOT aka Darren Callier, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 875

596 S.W.2d 875

Thomas A. BAREFOOT aka Darren Callier, Appellant, v. The STATE of Texas, Appellee.

No. 63715.

Court of Criminal Appeals of Texas, En Banc.

March 12, 1980.

Rehearing Denied April 30, 1980.

Stephen E. Blythe, Gerald M. Brown, Temple, for appellant.

Arthur C. Eads, Dist. Atty., Ralph Petty, Jr., James T. Russell and Steven C. Copenhaver, Asst. Dist. Attys., Belton, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

DALLY, Judge.

This is an appeal from a conviction for capital murder. The punishment is death.

Appellant contends that the trial court erred by failing to instruct the jury at the guilt-innocence stage of the trial on the law of circumstantial evidence, denying his motion for change of venue, overruling his challenges for cause of three prospective jurors, refusing his request for additional peremptory challenges, admitting evidence of extraneous offenses, failing to define "probability" in the charge at the punishment stage, and overruling his objections to the testimony of two witnesses as to the probability he would commit acts of violence in the future. Appellant also contends that Art. 37.071, V.A.C.C.P., is unconstitutionally vague.

Appellant was convicted for the murder of Harker Heights police officer Carl Levin. The appellant fatally shot Levin after the officer stopped him for questioning in an arson investigation. Although appellant does not contest the sufficiency of the evidence, a detailed review of the testimony is required in order to discuss his contention that the circumstantial evidence charge should have been submitted to the jury.

Appellant and four other persons were living in a trailer in Killeen during the summer of 1978. One of the appellant's roommates, Donnie Ray Tiller, testified that appellant had asked him for a gun and stated that he intended to kill a Harker Heights policeman who had allegedly mistreated him during an arrest for public intoxication. Appellant also told Tiller of his plans to commit various robberies in Harker Heights.

On August 6, 1978, appellant told Tiller that he was going to commit a robbery the next morning at the Oasis Club in Harker Heights after creating a diversion by bombing or setting fire to a building. Appellant stated to Tiller that he would kill anybody who recognized him as the robber. Appellant was wearing a white T-shirt and blue jeans at the time of this conversation.

Another roommate, Robert Roberson, testified that appellant awakened him at approximately 4:30 a. m. on October 7 and asked him for a ride to Harker Heights. Appellant was wearing a white T-shirt and blue jeans, and was armed with a .25 caliber automatic pistol and a home-made bomb. On the way to Harker Heights, appellant told Roberson he was going to blow up the Silver Spur, a night club. After first stopping at a convenience store where appellant filled an empty plastic milk jug with gasoline, Roberson dropped appellant off near the Silver Spur at about 5:00 a. m. and returned to the trailer.

John Edwards, a soldier at Ford Hood, drove past the Silver Spur at 5:15 a. m. He saw flames coming from the roof and a man he identified as appellant standing in the parking lot. As Edwards watched, appellant began to run along Highway 190. Edwards drove to the police station, which was nearby, to report the fire and then returned to the Silver Spur. On his way back to the fire, Edwards saw appellant near the intersection of Highway 190 and Amy Lane.

Back at the fire, Edwards saw a fireman remove a melted plastic jug from the roof of the building. He then told Officer Levin what he had seen. Levin, who was in uniform and driving a marked patrol car, left the scene of the fire and drove toward Amy Lane.

Michael Thrash, another Fort Hood soldier, lived on Amy Lane. He was walking to work at 5:35 a. m. when he saw a patrol car parked at the intersection of Amy Lane and Valley Road with its emergency lights on and its spotlight trained on some bushes. Officer Levin was standing beside the patrol car. A man wearing a white T-shirt and blue jeans stepped out of the bushes and walked toward the officer. The man then shot Levin in the head at point-blank range and fled down Valley Road.

Mary Richards, who lived on Valley Road, heard the shot and looking through a window, she saw a man wearing a white T-shirt running down Valley Road from Amy Lane. Richards could not positively identify appellant, but testified he resembled the man she saw.

Appellant called Tiller at approximately 10:30 a. m. on the morning of the shooting. Tiller described the conversation as follows:

"I answered the phone. He said, Donnie, I said, yes. He said this is Darren. He says have you been listening to the news? And I said, yes, Darren, did you do that? He said, Yeah, I shot him. I killed the mother fucker. I shot him in the head."

Tiller testified that this conversation was in reference to the August 7 shooting of the Harker Heights policeman. After appellant hung up, Tiller contacted the police.

Appellant returned to the trailer after the shooting and spoke to Roberson. Roberson testified that appellant was still dressed in a white T-shirt and blue jeans, had red blotches which appeared to be blood on his face and shirt, and appeared to be in a state of panic. After Roberson told him that the police had been to the trailer looking for him, appellant said that "he had to get out of town because he wasted a cop, that he killed a cop." Asked by Roberson how he had done it, appellant reached for his back pocket and then pointed his finger at Roberson's head at the place corresponding to the bullet wound to the head of the deceased. After washing up and changing clothes, appellant left the trailer.

Francisco Hernandez testified that he met appellant in downtown Killeen on the morning of August 7. He invited appellant to his home for lunch and subsequently offered to let him spend the night. The next morning, after hearing a radio news report describing the suspect in the Levin murder, appellant told Hernandez that "I am the one that they're looking for but I didn't kill no policeman."

Appellant subsequently made his way to Belton, where he boarded a bus for Houston. Police acting on information from Hernandez arrested appellant at the bus station in Houston at approximately 11:30 p. m. August 8. A .25 caliber automatic pistol that ballistics tests proved fired the bullet that killed Levin was in appellant's pocket at the time of his arrest.

David Kingsley was acting Chief of Police for Harker Heights at the time of the charged offense. He testified that Officer Levin was the only peace officer killed in Bell County on August 7, 1978.

If the accused admits or confesses killing the deceased, proof of the admission or confession is direct evidence of the main inculpatory fact and a charge on circumstantial evidence is not required. Sloan v. State, 515 S.W.2d 913 (Tex.Cr.App.1974); Hurd v. State, 513 S.W.2d 936 (Tex.Cr.App.1974); Swift v. State, 509 S.W.2d 586 (Tex.Cr.App.1974). However, if the admission or confession is equivocal as to the killing of the deceased, or if it is not clear that the killing admitted or confessed is the killing with which the defendant is accused, proof of the admission or confession alone will not relieve the trial court of the necessity of giving a circumstantial evidence charge. Ridyolph v. State, 545 S.W.2d 784 (Tex.Cr.App.1977); Hielscher v. State, 511 S.W.2d 305 (Tex.Cr.App.1974); Martinez v. State, 151 Tex.Cr.R. 316, 207 S.W.2d 387 (1948). Even if the confession is equivocal, a circumstantial evidence charge is not necessary if the other evidence, together with the confession, conclusively establishes that the killing confessed is the killing for which the defendant is on trial. Ridyolph v. State, supra; Hogan v. State, 496 S.W.2d 594 (Tex.Cr.App.1973); Steel v. State, 459 S.W.2d 649 (Tex.Cr.App.1970); Patterson v. State, 416 S.W.2d 816 (Tex.Cr.App.1967).

Tiller testified that appellant's admission to him that he "shot him in the head" was in reference to the shooting of the Harker Heights policeman on August 7. Officer Levin, who was shot in the head, was the only peace officer in Bell County killed that day. Appellant told Roberson that he "killed a cop" and described the shooting in a manner consistent with the murder of Levin. Appellant was seen in the area a few minutes prior to the shooting wearing a white T-shirt and blue jeans, the witness to the shooting testified that the assailant was dressed in that fashion, and Roberson testified that appellant was so dressed when he returned to the trailer splattered with blood. These facts, together with the other evidence discussed above, leave no reasonable doubt that the killing admitted by appellant was that of Officer Levin. Therefore, the admissions are direct evidence of the main inculpatory fact and the trial court did not err in refusing to charge on the law of circumstantial evidence. See and compare Ridyolph v. State, supra; Casey v. State, 523 S.W.2d 658 (Tex.Cr.App.1975); Hielscher v. State, supra; Hogan v. State, supra; Steel v. State, supra; Patterson v. State, supra.

Appellant contends that the trial court erred by refusing his motion for a change of venue. Appellant argues that news accounts of the shooting had created such a prejudice against him that he could not obtain a fair and impartial trial in Bell County.

The trial of appellant commenced eighty-three days after the commission of the offense. The hearing on the change of venue motion was held September 20, 1978, forty-four days after the shooting. Six residents of Bell County testified that in their opinion appellant could not receive a fair trial in the county at the time of the hearing of the motion. However, four of these witnesses stated during cross-examination that they could be fair and impartial if selected as jurors. Appellant's other witnesses were employees...